WRONGFUL CONVICTIONS: LIFE, LIBERTY, AND …...2018] WRONGFUL CONVICTIONS 889 compensating those who are wrongfully convicted and subsequently incarcerated. Most of these state statutes

WRONGFUL CONVICTIONS: LIFE,LIBERTY, AND THE PURSUIT OF

COMPENSATION

INTRODUCTION ................................................................... 888I. BACKGROUND .................................................................. 891II. SURVEY OF EXISTING STATUTES AND ANALYSIS OF

SHORTCOM INGS ............................................................. 893A. Statute of Limitations ............................................. 893

1. Statutory Survey ............................................... 8932. Critique of Existing Statutes ............................ 894

B . B urden of Proof ....................................................... 8961. Statutory Survey ............................................... 8962. Critique of Existing Statutes ............................ 897

a. Nelson v. Colorado ....................................... 897b. Implications of Decision .............................. 899

C. Gubernatorial Pardons ........................................... 8991. Statutory Survey .............................................. 9002. Critique of Existing Statutes ............................ 900

D. Expiration of Action Upon Death .......................... 9011. Statutory Survey ............................................... 9012. Critique of Existing Statutes ............................ 901

E. Legislature Approval of Funding ........................... 9011. Statutory Survey ............................................... 9012. Critique of Existing Statutes ............................ 902

F. D am age Caps ........................................................... 9031. Statutory Survey ............................................... 9032. Critique of Existing Statutes ............................ 904

G. Calculation of Damages ......................... I ............... 9051. Statutory Survey ............................................... 9062. Critique of Existing Statutes ............................ 907

H. Eligibility Requirements: Type of Offense andLength of Incarceration .......................................... 9081. Statutory Survey ............................................... 9082. Critique of Existing Statutes ............................ 909

887

888 MISSISSIPPI LAW JOURNAL [VOL. 87:5

III. IMPLEMENTATION PROCEDURES ................................. 909

IV. PROPOSAL FOR STATUTORY ADOPTION ....................... 911

A. Abolish the Statute of Limitations for CompensationC la im s ...................................................................... 9 11

B . B urden of Proof ....................................................... 912C. No Gubernatorial Pardons ..................................... 913D. No Expiration of Action Upon Death ..................... 913E. No Legislature Approval of Funding ..................... 914F. Damage Caps Should Remain Consistent with the

State's Cap on Civil Damages ................................. 915G. Compensation Should be Based on a Base Figure

and Adjusted for Aggravating Factors ................... 916H. Eligibility for Wrongful Convictions of All Crimes:

Misdemeanors and Felonies .................................... 917C ON CLU SION ....................................................................... 918

INTRODUCTION

How much money is spending a year in prison worth? Is it

worth $5,000?1 $50,000?2 Free tuition?3 If someone is wrongfully

convicted of a crime in the United States, the compensation for

time unjustly served can vary greatly4 -assuming, however, thatthe state even provides specific statutory compensation for

wrongful convictions.Currently, thirty-two states,5 the District of Columbia,6 and

the federal government7 provide specific statutory neans for

See WIS. STAT. ANN. § 775.05 (West 2017).

2 28 U.S.C. § 2513 (2012); ALA. CODE § 29-2-150 (2017); FLA. STAT. ANN. § 961.06

(West 2017); HAW. REV. STAT. § 661B-3(c) (2017); MICH. COMP. LAWS ANN. § 691.1755(West 2017); MINN. STAT. ANN. § 611.365 (West 2005); MISS. CODE ANN. § 11-44-7(West 2009); N.J. STAT. ANN. § 52:4C-5 (West 2013); N.C. GEN. STAT. ANN. § 148-84(West 1997) (between $20,000-500,000 per year); VT. STAT. ANN. tit. 13, § 5574 (2016)(between $30,000-60,000 per year).

3 See, e.g., MONT. CODE ANN. § 53-1-214 (2003).4 See WIS. STAT. ANN. § 775.05 (West 2017) (permitting recovery of up to $5,000

per year of incarceration, capped at $25,000); see also TEX. CIv. PRAC. & REM. CODE

ANN. § 103.052 (West 2011) (permitting a recovery of $80,000 per year of

incarceration).5 Alabama, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa,

Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,

Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North

2018] WRONGFUL CONVICTIONS 889

compensating those who are wrongfully convicted andsubsequently incarcerated. Most of these state statutes have beenenacted since 2000, leading to the conclusion that the idea ofcompensating those who are wrongfully convicted is a growingidea rather than a diminishing one. Yet, eighteen states have notadopted a statutory scheme to compensate victims of wrongfulconvictions.8 These states are not divided on political lines,9 oreven geographic lines;'0 rather, they are grouped together as acollection of states who are depriving citizens of their life andliberty without recourse.

There are alternate paths by which a victim of wrongfulconviction can make a claim against the state for indemnification.One way is to seek restitution by filing a section 1983 civil rightsclaim against state actors and municipalities who are believed tohave created the injustice." A section 1983 claim could allow aclaimant to bring a lawsuit against a government individual ormunicipality for deprivation of a constitutional right.12 However,since the section itself only provides a method for protectingconstitutional rights and .does not create substantive rights, it isdifficult for a claimant to prevail on these claims.13 Additionally,

Carolina, Ohio, Oklahoma, Tennessee, Texas, Utah, Vermont, Virginia, Washington,West Virginia, and Wisconsin. The individual statute citations will be providedintermittently throughout this Comment.

8 See D.C. CODE § 2-421 (1981).7 28 U.S.C. § 2513.8 Alaska, Arizona, Arkansas, Delaware, Georgia, Idaho, Indiana, Kansas,

Kentucky, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, Rhode Island,South Carolina, South Dakota, and Wyoming.

9 State Partisan Composition, NATL CONF. OF ST. LEGISLATURES (Mar. 2, 2018),http://www.ncsl.org/research/about-state-legislatures/partisan-composition.aspx#20 17[https://perma.cc/8VX5-LCRU].

10 Map of the United States ofAmerica, NATIONSONLINE.ORGhttp://www.nationsonline.orgloneworld/usa_map.htm [https://perma.ccIA27C-JNN7](last visited Mar. 19, 2018).

11 42 U.S.C. § 1983 (2012); Alberto B. Lopez, $10 and a Denim Jacket? A ModelStatute for Compensating the Wrongly Convicted, 36 GA. L. REV. 665, 690-91 (2002);Chelsea N. Evans, A Dime for Your Time: A Case for Compensating the WrongfullyConvicted in South Carolina, 68 S.C. L. REV. 539 (2017).

12 Lopez, supra note 11, at 691.13 Evans, supra note 11, at 557; C. RONALD HUFF, ARYE RATPrNER & EDWARD

SAGARIN, CONVICTED BUT INNOCENT: WRONGFUL CONVICTION AND PUBLIC POLICY 156(1996) ("The other option for these individuals seeking compensation, of course, isthrough civil litigation, but this can be impractical.").

MISSISSIPPI LAW JOURNAL

there is a significant financial burden placed on the claimant in acivil case where the right to an attorney is not present.14

Second, the victim of the conviction can seek legislativeremedies.15 This requires a claimant to lobby the state legislatureto pass a private bill that would pay money to the claimantdirectly from the state treasury.'6 Although this option seldomresults in the payment of damages, it has worked out for some.17

For instance, a man who spent ten years wrongfully incarceratedlobbied the Virginia General Assembly for damages with successin the amount of $500,000.18 However, some state courts havedeclared that these bills are unconstitutional. 19

Ultimately, these options are available, but not realistic forproviding a consistent and reliable path to indemnification fromthe state. To even further complicate matters, some states thathave compensation statutes use language that makes thecompensation statute the exclusive remedy for victims of wrongfulconviction.20 While this is not an inequitable principle in itself, itbecomes questioned when an individual spends twenty years inprison for a crime they didn't commit, only to receive $20,000.21

This Comment is a complete collection of states' wrongfulconviction compensation statutes. For each subsection, a critiqueof jurisdictional statutes will be provided. Finally, for states that

14 Newton N. Knowles, Exonerated, But Not Free: The Prolonged Struggle for a

Second Chance at a Stolen Life, 12 HASTINGS RACE & POVERTY L.J. 235, 245 (2015); seealso U.S. CONST. amend. VI. In addition, claimants have to face the problem ofsovereign immunity where the state must waive its immunity and subject itself to thesuit.

15 Lopez, supra note 11, at 698.16 Id.

17 Knowles, supra note 14, at 249-50 (where a claimant in Connecticut was

awarded $5,000,000 in 2007). But see Deborah Mostaghel, Wrongfully Incarcerated,Randomly Compensated-How to Fund Wrongful-Conviction Compensation Statutes,44 IND. L. REV. 503, 510-11 (2011) (where an Ohio man served three and a half yearsunjustly and was compensated $6,967).

18 Ruth S. Intress, Assembly Acts as VA.'s Court of Last Resort, RICHMOND TIMES

DISPATCH, Feb. 25, 1996, at A-1.19 See, e.g., Kalisek v. Abramson, 599 N.W.2d 834, 837-39 (Neb. 1999); see also

Rector v. State, 495 P.2d 826, 826-27 (Okla. 1972).20 See, e.g., MISS. CODE ANN. § 11-44-7(4) (West 2009) ("Any claimant who obtains

an award under this chapter may not obtain an award by reason of the same subjectagainst the State of Mississippi or a political subdivision thereof under the provisionsof the Mississippi Tort Claims Act....").

21 N.H. REV. STAT. ANN. § 541-B:14 (2017).

[VOL. 87:5890

WRONGFUL CONVICTIONS

have yet to adopt similar legislation, there will be a suggestion ofhow to implement the statute effectively, while providing idealstatutory schemes for guidance.

The Comment will begin with a short historical backgroundof current compensation statutes in Part 1.22 The backgroundsection is brief due to Part II serving as a fifty-state survey forcompensation statutes. The background section will providestatistics that can be referenced for various arguments throughoutthe remaining sections.

Part II contains a complete survey of compensation statutesin the United States. Each subheading will address a themecommonly found in the different compensation statutes based onjurisdiction. Within this section, there is a discussion of Nelson v.Colorado, decided in 2017 by the Supreme Court, followed bypotential outcomes that could result from Justice Ginsburg'sopinion.

Part III lays out broad guidelines for how a state canimplement a compensation statute and fund it properly. While theintragovernmental mechanisms are not detailed, the generalconcept of creating a self-sustaining fund is ushered forth.

Part IV provides an ideal statutory framework for states touse when creating or amending its compensation statute. Thesame subheadings to appear in Part II's survey will be located inPart IV, where new ideas will be presented. Some of therecommendations are modeled after current statutory provisions,but for certain provisions, if there is not an acceptable provision,the proposal will frame the ideal theme that states should adopt.

I. BACKGROUND

Devising a statutory scheme to provide a method forcompensation for those wrongfully incarcerated is hardly a newidea. In fact, the earliest compensation statutes were enacted byWisconsin and California in 1913.23 To illustrate the growing

22 The term "compensation statutes" will be used throughout instead of the

elongated "wrongful conviction compensation statutes."23 See Wis. STAT. ANN. § 775.05 (West 2017); Jeffrey S. Gutman, An Empirical

Reexamination of State Statutory Compensation for the Wrongly Convicted, 82 MO. L.REV. 369, 370 (2017); id. at 439. These statutes were adopted shortly after EdwinBorchard brought light to these issues by lobbying the Senate in 1912. WRONGFUL

2018] 891


trend in adopting specific statutory relief for wrongful convictions,

eighteen of these statutes have been adopted since 2000.24

Additionally, the jurisdictions implementing statutes mostrecently have devised schemes that give higher compensation andcaps than their antiquated counterparts.25

Based on a 2015 record of current incarceration statistics bythe BJS, there are over 1.3 million prisoners incarcerated in stateinstitutions.26 Of these 1.3 million, over 300,000 of them areincarcerated in states that do not provide specific statutorycompensation for wrongful convictions. 27 As of 2017, the InnocenceProject recognizes 353 successful exonerations through its workalone.28 Collectively, the 353 exonerees spent a total of 4,942 years

CONVICTIONS AND MISCARRIAGES OF JUSTICE: CAUSES AND REMEDIES IN NORTHAMERICA AND EUROPEAN CRIMINAL JUSTICE SYSTEMS 330 (C. Ronald Huff & Martin

Killias eds., 2013).24 ALA. CODE § 29-2-150 (2017); COLO. REV. STAT. § 13-65-101 (2013); CONN. GEN.

STAT. § 54-102uu (2016); FLA. STAT. ANN. § 961.02 (West 2017); HAW. REV. STAT. ANN.

§ 661B-1 (2017); 735 ILL. COMP. STAT. 5/2-702 (2014); LA. STAT. ANN. § 15:572.8 (2012);MASS. GEN. LAWS ANN. ch. 258D, § 1 (West 2004); MICH. COMP. LAWS ANN. § 691.1752(West 2017); MINN. STAT. ANN. § 590.01 (West 2005); MISS. CODE ANN. § 11-44-1 (West

2009); MO. REV. STAT. § 650.058 (2016); MONT. CODE ANN. § 53-1-214 (2003); NEB. REV.STAT. § 29-4602 (2009); UTAH CODE ANN. § 78B-9-405 (West 2012); VT. STAT. ANN. tit.

13, § 5572 (2016); VA. CODE ANN. § 8.01-195.10 (West 2010); WASH. REV. CODE §4.100.010 (2013).

25 Compare HAW. REV. STAT. ANN. § 661B-3(c) (2017) (passed in 2015, creating$50,000 per year of wrongful incarceration, with a maximum of $150,000 per year of

incarceration, with no maximum stated) with WIS. STAT. ANN. § 775.05 (West 2017)

(passed in 1913, created a $5,000 per year of wrongful incarceration, with a maximumof $25,000 for overall recovery).

26 E. Ann Carson & Elizabeth Anderson, Prisoners in 2015, U.S. DEP'T OF JUSTICE5 (Dec. 2016), https://www.bjs.gov/content/pub/pdf/pl5.pdf. [https://perma.cc/L8UP-86ED].

27 Id. Alaska (5,338); Arizona (42,719); Arkansas (17,707); Delaware (6,654);Georgia (52,193); Idaho (8,052); Indiana (27,355); Kansas (9,857); Kentucky (21,701);Nevada (13,071); New Mexico (7,169); North Dakota (1,795); Oregon (15,245);

Pennsylvania (49,858); Rhode Island (3,248); South Carolina (20,929); South Dakota(3,564); Wyoming (2,424).

28 Exonerate the Innocent, INNOCENCE PROJECT,

https://www.innocenceproject.org/exonerate [https://perma.cc/Q4GS-NFPQO] (last

visited Apr. 4, 2018); see also Keith A. Findley, Innocence Found: The New Revolutionin American Criminal Justice, in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 3, 5

(Sarah Lucy Cooper ed., 2014) ("As of July 2013, the National Registry counted a totalof 1,175 known exonerations in America since 1989.").


in prison for crimes they did not commit.29 The average exonereespends fourteen years in prison before gaining their freedom.30

II. SURVEY OF EXISTING STATUTES AND ANALYSIS OFSHORTCOMINGS

A. Statute of Limitations

The purpose of a statute of limitations is "to require diligentprosecution of known claims"3' so as to "promote justice bypreventing surprises through the revival of claims that have been

lost ... "32 In the context of compensation statutes,

[t]he competing interests raised by the statute of limitationsperiod are, on the one hand, to protect the state from undulydelayed claims-which both undermine the state's ability tobudget for its expected liabilities and increase the likelihoodthat relevant evidence is lost or discarded-and, on the otherhand, the wrongfully convicted claimant's need for sufficienttime to file suit.33

Typically, if a state imposes a longer statute of limitations, itis because the restrictions for eligibility requirements aregreater.34

1. Statutory Survey

Most of the states that have compensation statutes explicitlylist a statute of limitations for the claim to be brought. The mostcommon period of limitations is two years, having been adopted by

29 DNA Exonerations in the United States, INNOCENCE PROJECT,https://www.innocenceproject.org/dna-exonerations-in-the-united-states[https://perma.cc/8EN8-5NTH] (last visited Apr. 4, 2018). The Innocence Project notesthe average incarceration for an exoneree is fourteen years. This number wasmultiplied by the number of Innocence Project reported exonerees to produce thisfigure.

30 Id.

31 Statute of Limitations, BLACK'S LAw DICTIONARY (10th ed. 2014).32 Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-

49 (1944).83 Daniel S. Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in

Wrongful Conviction Claims Under State Compensation Statutes, 44 U. MICH. J.L.REFORM 123, 144 (2010).

34 Id.


fourteen states: Alabama, California, Colorado, Connecticut,Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Massachusetts,Minnesota,35 New Jersey, and New York.36 A three-year statute oflimitations is also fairly common with six states providing theextra year of leniency: Michigan, Mississippi, New Hampshire,Texas, Vermont, and Washington.37 A few outliers are: 120 days inWisconsin,38 one year in Tennessee,3 9 Oklahoma,40 the District ofColumbia,41 five years in North Carolina,42 six years for claimsagainst the federal government,43 and ten years in Montana.44 Afew states do not specify a statute of limitations: Maryland,Missouri, Nebraska, Utah, Virginia, and West Virginia.45

2. Critique of Existing Statutes

A statute of limitations serves as a procedural mechanism bywhich claims are prosecuted under time constraints in order to

85 But see Reynolds v. State, 888 N.W.2d 125, 133 (Minn. 2016) (holding that thestatute of limitations under the compensation statute was unconstitutional aspresented in a motion under Minn. R. Crim. P. 27.03, subd. 9). Additionally, the court

reasoned that the statute of limitations was unconstitutional as presented because itviolated the separation of powers under MINN. CONST. art. III, § 1. Id. at 128.

36 ALA. CODE § 29-2-162 (2017); CAL. PENAL CODE § 4901 (West 2016); COLO. REV.

STAT. § 13-65-102(b)(1-2) (2013); CONN. GEN. STAT. § 54-102uu (2016); FLA. STAT. ANN.§ 961.05 (West 2017); HAW. REV. STAT. ANN. § 661B-4 (2017); 735 ILL. COMP. STAT. 5/2-

702 (2014); IOWA CODE § 663A.1 (1997); LA. STAT. ANN. § 15:572.8 (2012); ME. STAT. tit.

14, § 8244 (2017); MASS. GEN. LAWS ANN. ch. 258D, § 8 (West 2004); MINN. STAT. ANN.§ 590.01 (West 2005); N.J. STAT. ANN. § 52:4C-4 (2013); N.Y. CT. CL. ACT § 8-B (Consol.2007).

17 MICH. COMP. LAWS ANN. § 691.1757 (West 2017); MISS. CODE ANN. § 11-44-9

(West 2009); N.H. REV. STAT. ANN. §541-B:14 (2017); TEX. CIV. PRAC. & REM. CODE

ANN. §103.003 (West 2011); VT. STAT. ANN. tit. 13, §5576 (2016); WASH. REV. CODE§4.100.090 (2013).

38 WIS. STAT. ANN. §893.80 (West 2009).39 TENN. CODE ANN. §40-27-108 (West 1982).40 OKLA. STAT. tit. 51, §156 (2003).41 D.C. CODE § 12-309 (2001).42 N.C. GEN. STAT. ANN. § 148-84 (West 1997).- 28 U.S.C. § 2501 (2012).44 MONT. CODE ANN. § 53-1-214 (2003) (although the state will only provide the

tuition assistance for five years within the ten-year period).4 MD. CODE ANN., STATE FIN. & PROC. § 10-501 (LexisNexis 2017); Mo. REV. STAT.

§ 650.058 (2016); NEB. REV. STAT. ANN. § 29-4602 (LexisNexis 2009); UTAH CODE ANN. §

78B-9-405 (West 2012); VA. CODE ANN. § 8.01-195.10 (West 2010); W. VA. CODE § 14-2-13a (2014).


prevent surprises by reviving stale claims.46 However, does justiceallow for a one-year statute of limitations when a person has beenwrongfully imprisoned by the government established to protecthim or her? A one-year statute of limitations in Tennessee isreflective of the general one-year limitation of tort claims for thestate,4 7 but this amount of time is simply too short.48

For a newly released inmate, there are many struggles thatgo along with adapting to life outside of prison. In addition tofinding employment and housing, the person may want to spendtime with the ones that he or she was unjustly kept from for years.Oftentimes filing for compensation under the wrongful convictionstatute may not even be a thought until it is too late.

Even more egregious is Wisconsin's compensation statutewhich provides for a mere 120-day statute of limitations.49

Wisconsin allows for three years to bring a claim in a personalinjury negligence action.50 Additionally, Wisconsin has a two-yearstatute of limitations for motor vehicle accidents resulting indeath.5 1 Essentially, Wisconsin allows for a victim of wrongfulincarceration only 11% of the time to file a claim, compared to ageneral negligence action.5 2 This cannot support a notion offairness considering the state has purposely stripped anindividual of their rights and continues to do so by implementing aharsh statute of limitations. Although Wisconsin was among thefirst states to enact a wrongful conviction compensation statute, itmust update its 104-year-old statute. Permitting only a mere four

4 See Statute of Limitations, BLACK'S LAW DICTIONARY (10th ed. 2014); see alsoOrder of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944).

47 Duffer v. Keystops, LLC, No. M2011-01484-COA-R3-CV, 2012 WL 3104903, at*10 (Tenn. Ct. App. July 31, 2012).

4 See Graugnard v. Capital Area Transit Sys., 137 So. 3d 26, 30 (La. Ct. App.2013); see also LA. CIV. CODE ANN. art. 3492 (1992). Louisiana specifies a general one-year statute of limitations for general negligence actions, but has implemented a two-year limitation for wrongful imprisonment actions under LA. STAT. ANN. § 15:572.8(2012).

49 WIS. STAT. ANN. § 893.82(3) (2016). But see 2017 WI A.B. 548, 2 (proposedlegislation where the Wisconsin legislature has offered to extend the statute oflimitations to three years).

50 WIS. STAT. ANN. § 893.54(lm) (2016).

61 WIS. STAT. ANN. § 893.54(2m) (2016).52 Compare WIS. STAT. ANN. § 893.54(lm) (2016) with WIs. STAT. ANN. § 775.05

(West 2017).

2018] 895


months to bring a compensation claim against the state is truly

burdensome and unjust.Additionally, jurisdictions that do not list a statute of

limitations are leaving an unnecessary burden on the claimant

and courts to determine how long the claimant has to file.

B. Burden of Proof

"The necessity or duty of affirmatively proving a fact or facts

in dispute on an issue raised between the parties in a cause."53

Simply put, the burden of proof is necessary because in a lawsuit,

somebody has to prove that something happened. In terms of a

compensation statute, the claimant always has the burden of proof

to prove that they were innocent.5 4

1. Statutory Survey

The two most common standards employed by states for

burden of proof requirements are preponderance of the evidence

and clear and convincing evidence. Accordingly, six states require

the petitioner to prove innocence by a preponderance of the

evidence: California, Connecticut, Hawaii, Illinois, Mississippi,

and New Hampshire;55 and, fifteen states require clear and

convincing evidence: Colorado, the District of Columbia, Florida,

Iowa, Maine, Massachusetts, Michigan, Nebraska, New Jersey,

New York, Utah, Vermont, Washington, West Virginia, and

Wisconsin.56

68 Burden of Proof, BLACK'S LAW DICTIONARY (10th ed. 2014).

5 States differ among the claimant's burden to prove "actual innocence" or "factual

innocence" depending on the individual jurisdiction's compensation statute. See, e.g.,

UTAH CODE ANN. § 78B-9-401.5(2)(a-c) (West 2012) (requiring the claimant to prove

"factual innocence", which means the person did not "engage in the conduct for which

the person was [later] convicted; engage in conduct relating to any lesser included

offenses of the crime for which the person was convicted; or commit any other felony

arising out of or reasonably connected to the facts supporting the indictment or

information upon which the person was convicted."); see also WASH. REV. CODE.§4.100.020(2)(a) (2013) (requiring the claimant to prove "actual innocence" which is

defined as "not engag[ing] in any illegal conduct alleged in the charging documents.").

55 CAL. PENAL CODE § 4903 (West 2016); CONN. GEN. STAT. § 54-102uu (2016);HAW. REV. STAT. ANN. § 661B-3(a) (2017); 735 ILL. COMP. STAT. 5/2-702 (2014); MISS.

CODE ANN. § 11-44-7 (West 2009); N.H. REV. STAT. ANN. § 541-B:14 (2017).5 COLO. REV. STAT. § 13-65-101 (2013); D.C. CODE § 2-422 (1981); FLA. STAT. ANN.

§ 961.03 (West 2017); IOWA CODE § 663A.1 (1997); ME. STAT. tit. 14, § 8241 (2017);

[VOL. 87:5896


The remaining twelve statutes do not specify a specificburden of proof requirement: Alabama, Louisiana, Maryland,Minnesota, Missouri, Montana, North Carolina, Ohio, Oklahoma,Tennessee, Texas, and Virginia.57


The difference in preponderance of the evidence, and clearand convincing evidence is really just semantics. Preponderance ofthe evidence is somewhere just above 51% certainty, and clear andconvincing evidence is between that and the beyond-a-reasonable-doubt standard implemented in criminal trials.58

a. Nelson v. Colorado

The most groundbreaking case that analyzes a compensationstatute was decided by the Supreme Court in April 2017.59 InNelson v. Colorado, the Supreme Court held § 113-65-101 of theColorado Revised Statutes unconstitutional because it violates dueprocess under the Fourteenth Amendment.60 Colorado's statute ismodeled like many others-the petitioner holds the burden ofproof to show innocence.61 Specifically, Colorado requires that thepetitioner demonstrate actual innocence by clear and convincingevidence.62 As Justice Ginsburg points out, "Absent conviction of a

MASS. GEN. LAWS ANN. ch. 258D, § 1 (West 2004); MICH. COMP. LAWS ANN. § 691.1755(West 2017); NEB. REV. STAT. § 29-4603 (2009); N.J. STAT. ANN. § 52:4C-3 (2013); N.Y.CT. CL. ACT § 8-B (2007); UTAH CODE ANN. § 78B-9-404 (West 2012); VT. STAT. ANN. tit.13, § 5574 (2016); WASH. REV. CODE § 4.100.060 (2013); W. VA. CODE § 14-2-13a (2014);WIS. STAT. ANN. § 775.05 (West 2017).

57 ALA. CODE § 29-2-150 (2017); LA. STAT. ANN. § 15:572.8 (2012); MD. CODE ANN.,STATE FIN. & PROC. § 10-501 (West 2017); MINN. STAT. ANN. § 590.01 (West 2005); MO.REV. STAT. § 650.058 (2016); MONT. CODE ANN. § 53-1-214 (2003); N.C. GEN. STAT. ANN.§ 148-84 (West 1997); OHIO REV. CODE ANN. § 2743.48 (2013); OKLA. STAT. tit. 51, § 154(2003); TENN. CODE ANN. § 40-27-109 (West 1982); TEX. CIV. PRAC. & REM. CODE ANN.§ 103.001 (West 2011); VA. CODE ANN. § 8.01-195.10 (West 2010).

58 VICTOR E. SCHWARTZ, KATHRYN KELLY & DAVID F. PARTLETT, PROSSER, WADE,AND SCHWARTZ'S TORTS: CASES AND MATERIALS 590 (13th ed. 2015).

59 Nelson v. Colorado, 137 S. Ct. 1249 (2017).60 Id.61 COLO. REV. STAT. § 13-65-101 (2013); see, e.g., WIS. STAT. ANN. § 775.05(3) (West

2017) ("After hearing the evidence on the petition, the claims board shall find eitherthat the evidence is clear and convincing that the petitioner was innocent of the crime.

or that the evidence is not clear and convincing . .62 COLO. REV. STAT. § 13-65-101 (2013).


crime, one is presumed innocent. Under the Colorado law . . . the

State retains conviction-related assessments unless and until theprevailing defendant . . . proves her innocence by clear and

convincing evidence. This scheme, we hold, offends the FourteenthAmendment's guarantee of due process."63

In Nelson, two claimants, who were found guilty at trial andsubsequently acquitted of all charges, filed a claim in Coloradostate court for a repayment of court costs, fees, and restitution.64

Both claimants were denied some portion of repayment at the trialcourt level.6 5 The Colorado Court of Appeals reversed the trialcourt and acknowledged the claimants' right to seek a refund forall expenses.66 The Colorado Supreme Court reversed theColorado Court of Appeals and held that the Exoneration Act wasthe exclusive remedy for these claims, and that the Act wasconstitutionally valid.67 The United States Supreme Courtgranted certiorari.68

In its analysis, the Court applied the procedural due processtest declared in Mathews v. Eldridge.6 9 This balancing testrequires the court to examine: (1) the private interest affected, (2)the risk of erroneous deprivation of that interest through theprocedures used, and (3) the governmental interest at stake.70

Essentially, the Court found that the claimants had an interest inrecovering the money they paid as a result of their wrongfulconvictions, and that the government had no interest in keepingthe money because it should not have been paid to the governmentin the first place.71 Although the Supreme Court focused primarilyon the monetary figure that was sought by the petitioner, theremay be deeper implications at play.7 2 For example, Justice

Ginsburg in her introduction states,

63 Nelson, 137 S. Ct. at 1252 (emphasis added).

64 Id. at 1251 (noting that the claimants chose not to file under Colorado's

Compensation for Certain Exonerated Persons statute).65 Id.

6 People v. Nelson, 369 P.3d 625 (Colo. App. 2013).67 People v. Nelson, 362 P.3d 1070 (Colo. 2015).

6 Nelson v. Colorado, 137 S. Ct. 30 (2016).69 Nelson, 137 S. Ct. 1249, 1255.70 424 U.S. 319, 335 (1976).71 David G. Post, Nlson v. Colorado: New Life for an Old Idea?, 2017 CATO SUP.

CT. REV. 205, 210-11.72 See generally Nelson, 137 S. Ct. 1249.

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[a]bsent conviction of a crime, one is presumed innocent ...[but] [u]nder the Colorado law the State retainsconviction-related assessments unless and until theprevailing defendant institutes a discrete civil proceeding andproves her innocence by clear and convincing evidence. Thisscheme, we hold, offends the Fourteenth Amendment'sguarantee of due process.73

Could Ginsburg's acknowledgment of the entitlement to apresumption of innocence mean that the State should afford thecivil claimant the presumption of innocence in the petitioningprocess?

b. Implications of Decision

The immediate result of this decision is clear on its face: thegovernment must automatically relinquish fees, costs, andrestitution extracted from an exoneree, since it no longer bearsany interest in them under the Mathews test.74 But for theSupreme Court to obligate state governments to return thesemonies without any hearing, is the Supreme Court also tipping itshand in future litigation over the burden of proof? This couldpotentially mean that the claimant must be presumed innocent inthe civil claim resulting from the criminal trial. Although courtshave relied on the Nelson decision,7 5 none have interpreted thedecision to extend the reach of a presumption of innocence to theresulting civil claims.

C. Gubernatorial Pardons

The power to eliminate a criminal record with the stroke of apen is perhaps one of the most powerful tools at a governor'sdisposal.76 In fact, pardons are such a powerful tool that many

73 Id. at 1252.74 Id.75 See generally, United States v. Brooks, 872 F.3d 78 (2d Cir. 2017); United States

v. Libous, 858 F.3d 64 (2d Cir. 2017).76 Clifford Dome & Kenneth Gewerth, Mercy in a Climate of Retributive Justice:

Interpretations from a National Survey of Executive Clemency Procedures, 25 NEW.ENG. J. CRIM. & CIV. CONFINEMENT 413, 417 (1999); see also Kristen H. Fowler,Limiting the Federal Pardon Power, 83 IND. L.J. 1651, 1652 (2008).

2018]


states did not want the right to pardon in the early years of

statehood.77

In terms of compensation statutes, some states allow a

claimant to prove innocence through multiple means; however,

other states require the claimant to obtain a governor's pardon or

DNA exoneration as the sole proof of innocence.78

1. Statutory Survey

Six states have adopted wrongful conviction compensation

statutes with the sole method of exoneration being a gubernatorial

pardon: California, Illinois, Maine, Maryland, North Carolina, and

Tennessee.79 The remaining twenty-six states allow for a judicial

finding or governor's pardon to suffice as a means for establishing

innocence.


"Limiting the manner of proof to pardons will severely limit

the reach of a compensation statute because the granting of

pardons is often dictated by the political climate of the state and

typically hinges on the advocacy efforts of local public figures such

77 Id. at 1654-55.

78 Donna McKneelen, "Oh Lord Won't You Buy Me a Mercedez Benz?": A

Comparison of State Wrongful Conviction Compensation Statutes, 15 SCHOLAR: ST.

MARY'S L. REV. ON RACE & SOC. JUST. 185, 198 (2013).79 See CAL. PENAL CODE § 4900 (West 2016) (requiring that the claimant "is

granted a pardon by the Governor" before bringing a claim against the state to the

California Victim Compensation Board); 735 ILL. COMP. STAT. 5/2-702 (2014); ME. STAT.

tit. 14, § 8241(2)(C) (2017) (the claimant must have "received a full and free pardon...

which is accompanied by a written finding by the Governor who grants the pardon that

the person is innocent"); MD. CODE ANN., STATE FIN. & PROC. § 10-501(b) (West 2017)

(a claimant is eligible "if the individual has received from the Governor a full pardon

stating that the individual's conviction has been shown conclusively to be in error.");

N.C. GEN. STAT. ANN. § 148-82 (West 1997) ("Any person who, having been convicted of

a felony and having been imprisoned therefor in a State prison of this State, and who

was thereafter or who shall hereafter be granted a pardon of innocence by the Governor

... may as hereinafter provided present by petition a claim against the State for the

pecuniary loss sustained .... "); TENN. CODE ANN. § 40-27-109(a) (West 1982) ("After

consideration of the facts, circumstances and any newly discovered evidence in a

particular case, the governor may grant exoneration to any person whom the governor

finds did not commit the crime for which the person was convicted.").

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as state legislators."0 Additionally, a claimant should be entitledto petition the same court that wrongfully incarcerated him or herfor redress. If a court has the power to take an action, it shouldbear the ability to provide redress for its actions.

D. Expiration of Action Upon Death

1. Statutory Survey

Four states have provisions in their wrongful convictionstatute that directly prevent the survival of a claim upon thedeath of the wrongfully incarcerated.81 However, four jurisdictionsexplicitly permit the survival of the claim upon death of the victimof the wrongful incarceration.8 2 The remaining jurisdictions makeno mention as to the claim's survivability or have ambiguitieswithin the statute.


Many of the jurisdictions deny or fail to address thesurvivability of wrongful incarceration claims. These states do notacknowledge that a wrongful incarceration effects those otherthan just the person physically confined without justification.

E. Legislature Approval of Funding

1. Statutory Survey

Some states require that the state legislature must approvefunding for claims against the state under the wrongful conviction

0 Muhammad U. Faridi, Hillel Hoffman & Paul A. Montuori, Undoing Time: AProposal for Compensation for Wrongful Imprisonment of Innocent Individuals, 34 W.NEW ENG. L. REV. 1, 19-20 (2012).

81 ALA. CODE § 29-2-160 (2017); FLA. STAT. ANN. § 961.05(2) (West 2017); NEB. REV.STAT. § 29-4604 (2009); VA. CODE ANN. § 8.01-195.10 (West 2010).

s2 MINN. STAT. ANN. § 611.365(7) (West 2005) (a wrongful conviction claim"survives the death of the petitioner or claimant and the personal representative of theperson may be substituted as the claimant or bring a claim"); MISS. CODE ANN. § 11-44-13 (West 2009) ("If any potential claimant dies prior to the filing of a claim, the claimmay be filed by and on behalf of his or her estate or heirs."); UTAH CODE ANN. § 78B-9-402(14)(b) (West 2012) ("A claim for determination of factual innocence under this partis not extinguished upon the death of the petitioner"); TEX. CIV. PRAC. & REM. CODEANN. § 103.001(c) (West 2011).

2018]


compensation statute.83 Many others make no mention of

legislative approval for compensation amounts.84


The jurisdictions that jeopardize the claimant's recovery by

making it subject to legislature approval are creating another

injustice for the wrongfully convicted. After serving unjust time in

prison and having innocence established, states can still deny the

right to compensation through a pseudo-legislative veto. Alabama,

for instance, states that the claimant is not entitled to any

compensation unless the legislature approves the funding.85 Thisprovision essentially gives the Alabama state legislature positive

publicity by establishing a compensation statute, while also giving

them absolute authority in denying claims under the statute.

However, this issue is not limited to Alabama. California also

jeopardizes recovery by creating a scheme where the California

Victims Compensation Board recommends an amount to the

Legislature, "with a recommendation that the Legislature make

an appropriation for the purpose of indemnifying the claimant for

the injury."86

Connecticut requires that the Claims Commissioner submit

his or her recommendation to the General Assembly, who then"may deny such claim or confirm or modify such compensation

award."8 7 This scheme allows for the legislature to deny or evenmodify the award without stating any statutory factors or

standard.88Minnesota provides that the claimants are "entitled to

damages of not less than $50,000 for each year of

imprisonment .... "89 but also that "[t]he commissioner shall

3 See ALA. CODE § 29-2-165 (2017) ("[Playment and receipt of any base orsupplemental compensation... is contingent upon the Legislature appropriating funds

for that purpose"). But see id. ('This article does not provide for an entitlement tocompensation to persons determined to have been wrongfully incarcerated, does notrequire that the Legislature appropriate funds for payment ....

8 See generally COLO. REV. STAT. § 13-65-101 (2013).85 ALA. CODE § 29-2-165 (2017).

8 CAL. PENAL CODE § 4904 (West 2016).87 CONN. GEN. STAT. § 54-102uu(d)(1) (2016).

88 See generally id.89 MINN. STAT. ANN. § 611.365(a) (West 2005) (emphasis added).

902 [VOL. 87:5


submit the amount of the award to the legislature forconsideration as an appropriation during the next session of thelegislature."90 In essence, Minnesota has created an entitlementwith conditions.91 The result is a legislature holding a veto-powerover any compensation award that it deems inappropriate.Additionally, the legislature is not required to state a reason fornot appropriating the funds.9 2 This promotes the ability oflegislators to make arbitrary decisions without needing to explainthemselves.

F. Damage Caps

Many jurisdictions have statutory damage caps in place.However, some states' supreme courts have declared the capsunconstitutional. Wrongful incarceration claims are often cappedbecause of the inability to accurately determine the extent of thenon-economic damage that one has suffered.

1. Statutory Survey

Twelve states have implemented caps on damages for theirrespective wrongful conviction compensation statutes: Florida,Illinois, Louisiana, Maine, Massachusetts, Mississippi, Nebraska,New Hampshire, North Carolina, Oklahoma, Tennessee, andWisconsin.93 The remaining jurisdictions choose one of two paths:

90 Id. § 611.367.

91 Entitlement is defined as "a right to benefits specified especially by law orcontract," but the statute allows the government to deprive its citizens of this clearlystated entitlement. Entitlement, MERRIAM-WEBSTER. Does this mean that thelegislature could have a tort action brought against it should it not approve theappropriation for compensation? But see VA. CODE ANN. § 8.01-195.10(A) (West 2010)("This article shall not provide an entitlement to compensation for persons wrongfullyincarcerated or require the General Assembly to appropriate funds for the payment ofsuch compensation." (emphasis added)).

92 See generally, MINN. STAT. ANN. § 590.01 (West 2005).93 See FLA. STAT. ANN. § 961.06 (West 2017) ($2,000,000); 705 ILL. COMP. STAT.

505/8 (2014) (for imprisonment lasting 1-5 years, $85,350; for imprisonment lasting 6-14 years, $170,000; and for imprisonment lasting over 14 years, $199,150); LA. STAT.ANN. § 15:572.8 (2012) ($250,000); ME. STAT. tit. 14, § 8242 (2017) ($300,000); MASS.GEN. LAwS ANN. ch. 258D, § 5 (West 2004) ($500,000); MISS. CODE ANN. § 11-44-7(2) (a)(West 2009) ($500,000, this is the same statutory damage cap that Mississippi abidesby for non-economic damages in civil litigation under MISS. CODE ANN. § 11-1-60 (West2009)); NEB. REV. STAT. § 29-4604 (2009) ($500,000); N.H. REV. STAT. ANN. § 541-B:14(2017) ($20,000); N.C. GEN. STAT. ANN. § 148-84 (West 1997) ($750,000); OKLA. STAT.

20181 903


(1) no mention of statutory caps on damages,94 or (2) explicitlystate that no damage caps will apply to the award amount.95


In Illinois, compensation is capped based on the amount ofyears spent wrongfully incarcerated. However, Illinois capsnegligence actions at over two times the amount that a wrongfulconviction claimant may receive.96 This difference suggests thatthe Illinois legislature finds more value in an ordinary negligenceaction than it does in depriving a citizen of the right to freedomand liberty.

Perhaps the most egregious statutory cap is found in NewHampshire, which limits the recovery a claimant can receive to$20,000.97 New Hampshire previously capped non-economic

damages at $875,000 in ordinary negligence actions.98 However,that statute has been held unconstitutional by the NewHampshire Supreme Court because it violated equal protectionguarantees under the New Hampshire Constitution.99 Thestatutory cap of $20,000 on damages for a wrongful convictionshould be brought to the New Hampshire Supreme Court'sattention who said, "the right to recover for personal injuries is...an important substantive right."100

tit. 51, § 154 (2003) ($175,000); TENN. CODE ANN. § 9-8-108 (West 1982) ($1,000,000);WIS. STAT. ANN. § 775.05 (West 2017) ($25,000).

94 See generally ALA. CODE § 29-2-150 (2017); see also CAL. PENAL CODE § 4900(West 2016).

95 See MINN. STAT. ANN. § 611.365 (West 2005) ('There is no limit on the aggregate

amount of damages that may be awarded under this section."); see also COLO. REV.STAT. § 13-65-103(6) (2013) ("The amount of monetary compensation awarded to an

exonerated person pursuant to this section shall not be subject to: (a) [a]ny capapplicable to private parties in civil lawsuits .... ").

9 735 ILL. COMP. STAT. 5/2-1115.1 (2014) (damages in a negligence action are

capped at $500,000 per plaintiff); 705 ILL. COMP. STAT. 505/8 (2009) (limiting an award

to $199,150 if the claimant spent more than 14 years in wrongful incarceration).97 N.H. REV. STAT. ANN. § 541-B:14 (2007).98 N.H. REV. STAT. ANN. § 508:4-d(I).99 Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991) (where a plaintiff suing for

medical malpractice was limited by a non-economic damage cap of $875,000, the New

Hampshire Supreme Court declared the cap unconstitutional due to equal protectionguarantees).

100 Id. at 1236.


Another state with an eye-catchingly low statutory cap onwrongful incarceration damages is Wisconsin.101 According to theWisconsin legislature, $25,000 is a sufficient amount to equitablycompensate someone who has served an indefinite amount of timein incarceration for a crime they did not commit.102 However,Wisconsin's Supreme Court has struck down a cap on non-economic damages before.103 Accordingly, the statutory cap placedon the damages that a claimant can receive violates the equalprotection clause of Wisconsin's Constitution.l0 4 It is worth notingthat Wisconsin has legislation currently pending to modernize itscompensation statute.105

G. Calculation of Damages

Attempting to establish an adequate amount of compensationfor a victim of wrongful conviction is almost an impossible task. 106"No one can really understand the loss of freedom, liberty sounjustly taken from another."'107 The truth of this statement flowsdirectly into the debate about recovering damages under statecompensation statutes. As one New York court put it,

We are asked to determine the value of the very things wetake for granted; the very things we hold dear; the longings,hopes and aspirations. In short, the very essence for this

101 Wis. STAT. ANN. § 775.05 (West 2017) (allowing up to $25,000 for recovery). Butsee WIS. STAT. ANN. § 893.82(6) (West 2017) (where the Wisconsin Tort Claims Actpermits recovery up to $250,000).

102 WIS. STAT. ANN. §775.05 (West 2017) ("[Ihe amount which will equitablycompensate the petitioner, not to exceed $25,000 and at a rate of compensation notgreater than $5,000 per year for the imprisonment.").

103 Ferdon v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440, 446 (Wis. 2005)(where the Wisconsin Supreme Court held that the medical malpractice damage cap of$350,000 was unconstitutional because of Wisconsin's equal protection clause).

104 WIS. CONST. art. I, § 1.105 2017 WI A.B. 548. The Wisconsin legislature has proposed legislation that is a

great improvement to its current statute, and it should be applauded. The newlegislation would provide a minimum compensation of $50,000 per year whileinstituting a $1,000,000 damage cap, which is reviewed every five years to determine ifit should be adjusted.

106 Gutman, supra note 23, at 397.107 See generally SCOTT CHRISTIANSON, INNOCENT: INSIDE WRONGFUL CONVICTION

CASES 37 (2004) (quoting Judge Adolph C. Orlando, in a case where after six and a halfyears of incarceration, Gregory Reed was freed based on innocence; subsequently, Reedwas awarded $495,000 by the Court of Claims in Kings County). Id.


individual's existence. It is as if a man's life has beenterminated at one point and then resurrected later; yet withall the intervening traumas, dangers and injuries that will

endure, linger and become a permanent part of his life. It iswithin this set of circumstances that this Court must awarddamages; stating again that the liberty one so cherishes isabsolute and the loss of it a tragedy of incalculable value.1 08

1. Statutory Survey

Seventeen states base compensation on a per year basis.10 9

These amounts can vary from $5,000,110 up to $143,000.111

Additionally, three states explicitly set forth amounts for recovery

108 Baba-Ali v. State, 878 N.Y.S.2d 555, 565 (N.Y. Ct. Cl. 2009) (citing Ferrer v.

State of New York, Claim No. 74308, 1990).109 ALA. CODE § 29-2-159 (2017) ($50,000 per year of wrongful imprisonment, plus

any discretionary amount that the court decides is necessary); COLO. REV. STAT. § 13-

65-103 (2013) ($70,000 per year of wrongful imprisonment, plus an additional $50,000

per year served on death row, and/or $25,000 per year on parole, probation, or a sex

offender registry); CONN. GEN. STAT. § 54-102uu (2016) (Up to 200% median householdincome per year of wrongful incarceration) (In 2005, this amount would be almost

$143,000 per year of incarceration,http://www.deptofnumbers.com/income/connecticut/); FLA. STAT. ANN. § 961.06 (West2017) ($50,000 per year of wrongful incarceration); HAW. REV. STAT. ANN. § 661B-3

(2016) ($50,000 per year, and up to $150,000 per year if extraordinary circumstances

exist); LA. STAT. ANN. § 15:572.8 (2012) ($25,000 per year, plus up to $55,000 in

additional compensation if the court finds the request "reasonable and appropriate");MICH. COMP. LAWS ANN. § 691.1755 (West 2017) ($50,000 per year of wrongfulincarceration); MINN. STAT. ANN. § 611.365 (West 2014) ($50,000 per year of wrongful

incarceration, plus an additional $25,000 per year while on probation, parole, or a sex

offender registry); MISS: CODE ANN. § 11-44-7(2)(a) (West 2009) ($50,000 per year); N.J.STAT. ANN. § 52:4C-5 (2013) ($50,000 per year or double the claimant's income before

the imprisonment, whichever is greater); N.C. GEN. STAT. ANN. § 148-84 (West 1997)

($50,000 per year); UTAH CODE ANN. § 78B-9-405 (West 2012) ("[T]he monetary

equivalent of the average annual nonagricultural payroll wage in Utah.") (this amount

as of 2016 is $45,490, https://www.bls.gov/oes/currentloes-ut.htm); VT. STAT. ANN. tit.

13, § 5574 (2015) (authorizing awards to be between $30,000 and $60,000 per year of

wrongful imprisonment); VA. CODE ANN. § 8.01-195.11 (West 2017) (90% of Virginia's

per capita income per year of wrongful incarceration) (as of 2016, this amount would be

$47,661 per year,https://www.bea.gov/regional/bearfacts/pdf.cfm?fips=51000&areatype=STATE&geotype=3 [https://perma.cc/3RMY-K5DF]); WASH. REV. CODE § 4.100.060 (2013) ($50,000 per

year, plus an additional $50,000 per year while on death row); WIS. STAT. ANN. §

775.05 (West 2017) ($5,000 per year of wrongful incarceration).110 See WIS. STAT. ANN. § 775.05 (West 2017).- See CONN. GEN. STAT. § 54-102uu (2016);

http://www.deptofnumbers.com/income/connecticut [https://perma.cc/5HIR-MATL].


on a per-day basis.112 These amounts range from $50 to $140 perday.113 However, six states have ambiguous language that do notspecify an exact amount.114


How can you place a value on someone's life? Lawyers place avalue on their time based on the billable hour standard. But forthose who do not live in six-minute increments of time, how do youdetermine the value placed on their time? This is the questionthat haunts victim compensation statutes.

The states that have ambiguous language and do not providea clear baseline compensation amount have placed anotherpotential obstacle in the face of the wrongfully convicted. By noteven providing a base amount of compensation, states are notsetting a floor on compensation amounts.115 Therefore, a jury orjudge is forced to discern what another's life is worth. States thatuse pure discretionary criteria are doing very little to protect therecovery of a claimant.

Additionally, states that provide an exact amount, withoutdiscretionary factors are doing more to protect the state fromhaving to pay large sums, rather than fully compensate a victimfor the loss of liberty and life. 116 This is counterintuitive becauseexonerees who are compensated above $500,000 are far less likelyto commit crimes in comparison to those who are not compensatedor compensated below $500,000.117 This evidence suggests that

112 CAL. PENAL CODE § 4904 (West 2016) ($140/day); IOWA CODE § 663A.1 (1997)

($50/day and up to an additional $25,000/year for lost wages); MO. REV. STAT. § 650.058(2016) ($50/day).

113 See IOWA CODE § 663A.1 (1997); see also CAL. PENAL CODE § 4904 (West 2016).114 See D.C. CODE § 2-421 (1981); MD. CODE ANN., STATE FIN. & PROC. § 10-501

(West 2017) ("amount commensurate with the actual damages sustained"); MASS. GEN.LAWS ANN. ch. 258D, § 1 (West 2004) (providing enough compensation so award "fairlyand reasonably compensate[s]" the victim of wrongful incarceration); NEB. REV. STAT. §29-4604 (2009) (awarding "damages found to proximately result from wrongfulconviction"); N.Y. CT. CL. ACT § 8-b (2007) (providing compensation that "fairly andreasonably compensate[s]" the victim of wrongful imprisonment).

116 See, e.g., MASS. GEN. LAwS ANN. ch. 258D, § 5 (West 2004).116 See WIS. STAT. ANN. § 775.05 (West 2017) (providing $5,000 per year).117 Evan J. Mandery, Amy Schlosberg, Valerie West & Bennett Callaghan,

Compensation Statutes and Post-Exoneration Offending, 103 J. CRIM. L. &CRIMINOLOGY 553, 556 (2013).

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providing higher compensation amounts is essential to keep

exonerees out of prison after they are released."18

H. Eligibility Requirements: Type of Offense and Length ofIncarceration

Almost all jurisdictions include language to limit redress to a

particular class of offender.119 Claimants must meet these

eligibility requirements set forth by the legislature, or they will

lack standing to sue and the claim will be dismissed. 120

1. Statutory Survey

One type of limitation that jurisdictions place on potential

claimants is the requirement that they were convicted of a

felony.121 Just over half of the jurisdictions require that the

claimant was convicted of a felonious offense.122 However, three

jurisdictions specifically allow for claimants to bring a claim if

they were wrongfully incarcerated for a misdemeanor or a

felony.123 Additionally, the remaining jurisdictions allow for any

claimant who was wrongfully convicted of any crime to bring a

claim.124

118 Knowles, supra note 14, at 253.119 Kahn, supra note 33, at 137.120 Id.121 See, e.g., ALA. CODE § 29-2-156(1) (2017) ("convicted by the state of one or more

felony offenses") (emphasis added); Evans, supra note 11, at 564.122 ALA. CODE § 29-2-156 (2017); CAL. PENAL CODE § 4900 (West 2016); COLO. REV.

STAT. § 13-65-101 (2013); FLA. STAT. ANN. § 961.02 (West 2017); 735 ILL. COMP. STAT.5/2-702 (2014); MASS. GEN. LAWS ANN. ch. 258D, § 1 (West 2004); MINN. STAT. ANN. §590.01 (West 2005); MISS. CODE ANN. § 11-44-7(1)(a) (West 2009); MO. REV. STAT. §

650.058 (2016); MONT. CODE ANN. § 53-1-214 (2003); NEB. REV. STAT. § 29-4602 (2009);N.C. GEN. STAT. ANN. § 148-84 (West 1997); OKLA. STAT. tit. 51, § 154 (2003); UTAH

CODE ANN. § 78B-9-405 (West 2012); VT. STAT. ANN. tit. 13, § 5572 (2016); VA. CODE

ANN. § 8.01-195.10 (West 2010); WASH. REV. CODE § 4.100.010 (2013).123 IOWA CODE § 663A 1 (1997); N.Y. CT. CL. ACT § 8-b (2007); W. VA. CODE § 14-2-

13a (2014).124 See, e.g., HAW. REV. STAT. § 661B-1(a) (2017) ("Any person convicted in a court of

the State and imprisoned for one or more crimes of which the person was actuallyinnocent may file a petition for relief ... ").

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By limiting compensation to only those who were wrongfullyconvicted of felonies, the state is providing unequal protection forthe same injustice-wrongful incarcerations. The reasoning forproviding compensation to those wrongfully convicted is the ideathat the government cannot take individual rights unjustlywithout some form of repercussion. The premise for this ideashould not change because of a technical difference between afelony and a misdemeanor. The unjust deprivation of anindividual's right still occurs-no matter the crime wrongfullyimprisoned for.

III. IMPLEMENTATION PROCEDURES

A victim of wrongful incarceration is just that-a victim.Therefore, as a victim of the state, the compensation recovered bythe victim should come out of a crime victims' fund. Additionally,by paying the claimant through a partial lump-sum payment, tobe followed by annuities, the state does not have to bear the entirecost of its mistake at once.12 5

Unfortunately, many states that provide specific statutorycompensation for those wrongfully convicted neglect to mention aprecise source of funding.126 The most successful compensationstatute must have a source of funding-that also has a source offunding for itself. Otherwise, a state is left with an idea of wherethe money comes from, but if there is no legislation enacted to putthe money where it needs to go, then the funding is inadequate.

125 But see Gutman, supra note 23, at 421-22 (advocating for a national fund to beestablished through contributions from the individual states). A national compensationsystem is not proper because these are purely state issues and do not involve thenational government.

126 See ALA. CODE § 29-2-159(d) (2017) ("The Comptroller upon proper certificationfrom the committee shall pay the amount of the base award to the applicant out of anyavailable state funds appropriated by the Legislature for such purposes."). However,this requires that the Alabama Legislature specifically designate the funds fromsomewhere rather than have it written into the statute. See also CONN. GEN. STAT. §54-102uu (2016) (Where the statute requires the Claims Commissioner to order theimmediate payment to the claimant, without mentioning from where the money is to bedrawn). But see MICH. COMP. LAws ANN. § 691.1756(1)-(8) (West 2017) (providing thata wrongful imprisonment compensation fund be created and placing a duty on the statetreasurer to pay the claims if there is insufficient money in the compensation fund).

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A model crime victims' fund would work as follows. First, thestate creates a separate fund that is distinct from the generalfunds of the state. Second, the state initially puts a sum of moneyinto the fund. Then, those found guilty of crimes in state criminalproceedings would have to contribute to this fund as part of theirsentencing. The contribution would be commensurate with theseverity of the crime.127 The fund could be invested with a moneymanaging firm and could begin the path to self-sufficiency.128 Forstates looking to create a compensation statute, it would benecessary to contribute a greater amount initially because of theexpected back-log of claimants who will seek compensation.

An alternative path for funding compensation statutes is totake money directly from the general funds of the state. In thismodel, there is no worry about exceeding an allotment within aseparate fund. However, the consideration that arises is that themoney is not specifically ear-marked for this purpose, and thus,some portion of the budget will be impacted by the deficit.Although the state's focus should be on compensating the victim ofthe wrongful conviction, other recipients of government fundingshould not bear the deficiency for the inadequacy of the statute. 129

Instead, the government could draw money from specialsources to fund a wrongful compensation fund that is separate anddistinct as previously mentioned. An easy avenue for additionalrevenue is increasing the fines on a speeding ticket with the

127 For example, a drug-related misdemeanor conviction may carry a fine of $150-

$500 of contribution, whereas a conviction for domestic violence would carry a fine of$1,000-$2,500. The individual states would have the discretion to determine properamounts.

128 See, e.g., MICH. COMP. LAws ANN. § 691.1756(3) (West 2017) ('The statetreasurer shall direct the investment of the wrongful imprisonment compensation fund.The state treasurer shall credit to the fund interest and earnings from fundinvestments."). It is not merely a coincidence that Michigan has the most recentversion of a compensation statute and uses techniques as forward-thinking asinvestment of the fund to become self-sufficient.

129 See Mostaghel, supra note 17, at 541-42 (proposing that funding for

compensation statutes be gathered from the corrections budget). However, this idea isinadequate because the corrections budget of many states is already razor thin.Additionally, the corrections budget has already had to use its funding to keep thevictim incarcerated, and to impose an additional penalty that has a detrimental effect

on its budget is to punish it twice for an injustice beyond its control.

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additional increased portion directly funding the wrongfulconviction fund.13 0

IV. PROPOSAL FOR STATUTORY ADOPTION

This proposal, while focusing on states without compensationstatutes, also should give guidance to states with inadequatestatutes. The proposal itself does not include model statutorylanguage to be adopted, rather it will suggest the overall schemesto adopt while leaving the exact language to legislative experts, ofwhich I am not.

A. Abolish the Statute of Limitations for Compensation Claims

Jurisdictions should not have a statute of limitations forwrongful imprisonment compensation claims. A statute oflimitations is meant to protect an individual from being unfairlyprejudiced by a delayed claim that could reappear once evidence islost.13 1 However, the government, as a protector of individualhuman rights, cannot claim to be at the same disadvantage from adelayed claim compared to an individual. The government hastaken two of the most fundamental rights from a claimant andshould not deny a substantive claim based on a proceduralinjustice. One injustice by the government is enough.

Contrary to popular belief, a state does not have to create astatute of limitations. This is exemplified best when discussing thecrime of murder.13 2 There is no statute of limitations for some ofthe most heinous crimes.133 Wrongful imprisonment of an

130 Id. at 540 ("Governments. are unlikely to see raising taxes as a solution becauseraising taxes imposes a political cost on elected government officials."). Therefore, adirect tax increase will be unfavorable, but an indirect tax increase, such as increasedfines for speeding tickets, may not bear the same political cost.

131 Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49

(1944).132 See, e.g., 42 PA. CONS. STAT. § 5551 (2007).133 See, e.g., MISS. CODE ANN. § 99-1-5 (West 2013) (specifically providing that "[t]he

passage of time shall never bar prosecution against any person for the offensesof murder, manslaughter, aggravated assault, aggravated domestic violence,kidnapping, arson, burglary, forgery, counterfeiting, robbery, larceny, rape,embezzlement, obtaining money or property under false pretenses or by fraud,felonious abuse or battery of a child..."); see also WASH. REV. CODE ANN. § 9A.04.080(2013) (declaring that no statute of limitations shall exist for murder, vehicularhomicide, arson, child sexual abuse, etc.).

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individual should be considered among the most heinous ofcrimes.134 Unfortunately, with the state risking additional liabilityby not imposing a statute of limitations, it is unlikely that justicewill be served to those who have suffered at the hands of recklessprosecutions and jailhouse snitches.

B. Burden of Proof

The State is required to show guilt beyond a reasonabledoubt in criminal proceedings because of a great presumption ofinnocence afforded to a criminal defendant.135 However, no stateretains the presumption of innocence of an exoneree in a resultingcivil proceeding against the state.136 This logic is flawed becausethe state has failed to meet its burden in showing that a personwas guilty of a crime during a criminal trial; but, it is afforded thepresumption at a civil trial. The claim would not exist but-for thecriminal trial where the State failed to meet its burden in provingthat a person was guilty. The civil trial that ensues should reflectthe derivative nature of the claim sought.

The claimant should be afforded the presumption ofinnocence in a claim for compensation. The State should retain aburden to prove that the claimant was "actually" or "factually"guilty, depending on the state's verbiage, by a preponderance ofthe evidence. By instituting a lower burden of proof than acriminal trial, a prosecution that lacks evidence to meet thebeyond-a-reasonable-doubt standard can still defend itself in civilclaims resulting from a wrongful imprisonment. Additionally,instituting a lower burden on the State for compensation claimswill deter costly and burdensome criminal re-trial where the Statewould have to meet the BARD standard in both criminal and civilcases.137

134 Gutman, supra note 23, at 370.135 In re Winship, 397 U.S. 358, 361 (1970).

136 See, e.g., FLA. STAT. ANN. § 961.03(5) (West 2017) ("the petitioner's eligibility for

compensation under this act must be established by clear and convincing evidence bythe petitioner...").

137 Because the proposal suggests preponderance of the evidence as the burden of

proof on the State for the compensation claims, the State may forego a criminal trial

but still fight the civil liability. Thus, the exoneree would not have to suffer through

another trial at the very least.

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C. No Gubernatorial Pardons

States should not limit a determination of innocence only to apardon issued by a governor. Jurisdictions looking to adopt ormodify their compensation statute should allow for innocence to bedetermined either by a court, or by a pardon. By limiting themeans of demonstrating innocence to a gubernatorial pardon,states are limiting the possibility of compensation to a politicalactor who can make decisions based on personal ideology ratherthan facts.

There has been great controversy surrounding the pardonpower.138 The principal problem with allowing for a governor'spardon as the sole declaration of innocence is that the separationof powers is breached.139 Courts are meant to be the forum forwhich a person is determined to be guilty or innocent-not theexecutive branch.4 0 There is something inequitable aboutallowing a court to provide a forum for a criminal conviction, butclosing those same doors once it is discovered that the injusticeoccurred. The states that remove the ability to provide redressfrom the judiciary are violating their constitution and aredemonstrating the inequity in the criminal justice system.

D. No Expiration of Action Upon Death

The states that limit actions to a living claimant are taking anarrow-minded approach by assuming that the victim of theincarceration is no longer entitled to just compensation for thestate's miscarriage of justice. However, this logic does not apply towrongful death actions. A wrongful death action, in many states,is instituted by those who are affected by the untimely deprivationof life of another that they relied on.141 This aligns perfectly with

138 Vivian Kuo, Outgoing Mississippi Governor Issues Nearly 200 Pardons, CNN(Jan. 10, 2012), https://www.cnn.com/2012/01/10/justice/mississippi-pardons/index.htmlihttps://perma.cc/LS8J-3V3HL; Colorado governor pardons felon to stave off deportationto Cuba, Fox NEWS (May 20, 2017), http://www.foxnews.com/us/2017/05/20/colorado-governor-pardons-felon-to-stave-off-deportation.html [https://perma.cc/765G-3RTJU].

139 See generally U.S. CONST. art. III, § 1. Although the example provided is afederal one, states adopt very similar language in their constitutions when providingfor the judicial power of the state.

140 Compare U.S. CONST. art. III, § 1, with U.S. CONST. art. II, § 1.141 See, e.g., OKLA. STAT. tit. 12, § 1053 (2003).

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the claim of wrongful conviction-the deprivation of life that has adirect harm upon others.

The question then becomes: what makes this different? It isnot that wrongful imprisonment is somehow not as serious as theabove examples, or even that the harm created is minute. Instead,the difference is that the state is creating the injustice.Nonetheless, this is not an excuse for a state to wrongfully deprivea person of life and liberty, only to deny them any recoverybecause of death. The estate left by the decedent should at thevery least benefit from the action. A claim against the state shouldsurvive because of the equitable principles of a civilized societythat will not allow the government to take an individual's rightswithout justification.

E. No Legislature Approval of Funding

States with the requirement that the legislature mustapprove of the compensation claim amount should immediatelyamend their statutes to dispose of these provisions. The victim ofthe wrongful incarceration should not be burdened by the stateany longer for the injustice that they have suffered. Additionally,a politically-charged body should not be in control of rectifying theinjustice carried out by the state--of which they are a functioningarm. Legislators could find many reasons to deny a claimant theirrelief, especially in times of economic hardships and budgetarydeficits.142 However, these legislative concerns are not concerns ofthe claimant. The premise is simple: the state created an injustice,and when an injustice is created, somebody has to provide aremedy for it; therefore, the state has to remedy the injustice thatit created. By placing discretionary power over the claimant withthe legislature, states are allowing for the opportunity of anotherstate-created injustice to occur. Effectively, legislatures can adopt

142 Scott Wong, Chances for Government Shutdown Rising, THE HILL (Nov. 28,

2017), http://thehill.com/homenews/house/362256-chances-for-government-shutdown-rising [https://perma.cc/Y3G9-SWPD]; Dylan Matthews, Here is Every Previous

Government Shutdown, Why They Happened and How They Ended, WASH. POST (Sept.25, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/09/25/here-is-every-previous-government-shutdown-why-they-happened-and-how-they-ended/?utmterm=.c159112b6c71 [https://perma.cc/X3GA-TWLL].

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feel-good wrongful conviction statutes, all while knowing that theyhold veto power over such claims.143

To put the horror of a claimant into perspective, there wouldbe outrage if the victim of a sexual assault was reliant on his orher assailant for the approval of an award.44 That same outrageshould be demonstrated when the state wrongfully prosecutes,sentences, and incarcerates an individual for any length of time.Then, shortly after release, the claimant is required to hedge hisor her bet on the same government that provided the miscarriageof justice.

F. Damage Caps Should Remain Consistent with the State'sCap on Civil Damages

Although civil damage caps vary from jurisdiction tojurisdiction in both constitutionality and amount, the adoptedcompensation statute should follow the respective state's civil non-economic damage caps, if applicable. The reasoning is simple: theclaimant should be treated like every other citizen of the state.There is no question about the hardship and unfairness of awrongful incarceration, but if a state has a constitutionally validnon-economic damage cap, these claims should be resolved withinthat cap. By resolving the damages to an amount within the cap,the claimant can get their relief quicker without the aggravationof appeals. After all, the claimants, on average, have lost nearlyfourteen years due to the wrongful incarceration;145 there is noneed to continue their suffering by withholding the entitledaward.

'43 See ALA. CODE § 29-2-165 ("Notwithstanding any other provisions of this article,payment and receipt of any base or supplemental compensation.., is contingent uponthe Legislature appropriating funds for that purpose. This article does not provide foran entitlement to compensation to persons determined to have been wrongfullyincarcerated, does not require that the Legislature appropriate funds for payment ofeither base or supplemental compensation ... ").

144 Both sexual assault and wrongful imprisonment involve the deprivation of anindividual's liberty by a perpetrator. The two should not be distinguished merelybecause one is a faceless perpetrator (government).

145 Exonerate the Innocent, INNOCENCE PROJECT,https://www.innocenceproject.org/exonerate [https://perma.cc/Q4GS-NFPQO] (lastvisited Apr. 4, 2018).

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G. Compensation Should be Based on a Base Figure andAdjusted for Aggravating Factors

States should adopt or modify their compensation statutes tocreate a base amount of compensation at $50,000 per year.146 Thisamount aligns with many states and the federal compensationstatute.147 However, the state should also provide an additional$25,000 per year in compensation for aggravating factors such asyears spent on death row, the sex offender registry, probation, orparole.148 Unfortunately, many horrific things take place within aprison and those unimaginable atrocities can be dealt withindividually. States should have a discretionary amount to awardup to $25,000 per year in additional compensation for instances ofextraordinary suffering.149 These amounts apply only to non-economic damages.

However, for additional time that the incarcerated individualhas added on while in prison, the state should not be liable. Thiswould extend to situations where the individual has violated arule or regulation in the prison and has the sentence extended.The state bears full responsibility for placing the individual in theprison, but the actions of the incarcerated person cannot beimputed on the state. Essentially, this point is supported by thegeneral law of damages where the plaintiff must mitigatedamages. 150

Additionally, claimants should be able to prove specificeconomic losses for consideration of damages. These losses could

14 See, e.g., MIss. CODE ANN. § 11-44-7 (West 2009) (If the court finds that theclaimant was wrongfully convicted and incarcerated ... the court shall award: (a) FiftyThousand Dollars ($50,000.00) for each year of incarceration .... "); see also MINN.STAT. ANN. § 611.365 (West.2005) ("[T]he claimant is entitled to monetary damages ofnot less than $50,000 for each year of imprisonment . .

147 28 U.S.C. § 2501 (2012).148 See, e.g., MINN. STAT. ANN. § 590.01 (West 2005).149 Although this would be at the state's discretion, it would be very difficult to find

an instance where a human being was wrongfully convicted and incarcerated that didnot result in extraordinary suffering.

150 Rockingham Cty v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929) (discussing the

duty to mitigate damages in the context of contracts); see also RESTATEMENT (SECOND)OF CONTRACTS § 350(1) (damages are not recoverable if they can be avoided without"undue risk, burden or humiliation"). There may potentially be an issue of theincarcerated individual getting an extended sentence for self-defense in prison, whichbegs the question of the action being necessary to prevent undue risk, etc.

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include, but are not limited to, lost wages, future medicalexpenses, and lost property proximately caused from theincarceration.151 The claimant must be able to prove that thewrongful incarceration proximately caused these damages andwere unavoidable.

Lastly, claimants should be awarded fifty percent of the totaldamages in a lump sum, with the remaining amount to be paid ininstallments. 15 2 The consideration for this proposal is simple-thevictim needs to be on an equal playing-field with the rest of thepopulation. This will result in a windfall for some, but it should beconsidered more acceptable to over-compensate than to under-compensate. By allotting a substantial amount of the award up-front, the claimant can have access to what is legally theirs,without having to wait for a monthly payment. Although Iadvocate for annuities to follow, this is not because I believe in thelottery winner's curse.153 Rather, I believe that the state should beable to spread out the financial hit that it will take over the years.By providing half of the money initially, there is a notion offairness to the individual who has suffered tremendously, and tothe state who does not bear the entire burden at once.

H. Eligibility for Wrongful Convictions of All Crimes:Misdemeanors and Felonies

The premise is simple: a year in prison, is a year in prison.Regardless of the crime being a misdemeanor or felony, theinnocent individual is forced to spend time incarcerated instead ofexercising his or her liberties as a free human being. States shouldmodel their statutory language after Hawaii's provision:

Any person convicted in a court of the State and imprisonedfor one or more crimes of which the person was actuallyinnocent may file a petition for relief pursuant to this chapter

151 This could include a car that was repossessed while the individual was

wrongfully incarcerated and unable to earn enough money to pay the note.152 But see Gutman, supra note 23, at 433 (advocating for installment payments as a

bargaining chip to gain enhanced generosity from the state).163 Sandra Grauschopf, Lottery Curse Victims: 7 People Who Won Big & Lost Bigger,

THE BALANCE (last updated May 6, 2018), https://www.thebalance.com/lottery-curse-victims-896653 [https://perma.ccD9KV-ZK46].

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for an award of damages against the State; provided that therequirements of subsection (b) are met.15 4

By including the word "crimes" instead of "felony", a state isnot sealing off the courthouse doors because of a poorly written

statute. Furthermore, a state's culpability in wrongfully

incarcerating one of its citizens should not be diminished becauseof a technical difference. The state has an implied social contractwith its citizens. The citizens surrender certain rights andliberties to the state in exchange for the state's protection.However, in the situation of a wrongful conviction, the state has

breached that social contract. The state must pay damages whenit breaches the social contract by incarcerating innocentindividuals.

CONCLUSION

One of the most difficult things to do in life is admit faultwhen you are wrong. In the year 2018, with eighteen states still

not having enacted statutes to compensate those wrongfullyconvicted, the acceptance of fault remains an insurmountable task

in some states. Although a majority of states have enactedlegislation to compensate victims of wrongful convictions, thework is not yet complete. States are still writing unjust provisionsinto the statute as a loophole mechanism to avoid liability. 155

Moreover, states are requiring the claimant to prove his or heractual innocence without guaranteeing the right to an attorney inthe process. These states enacted good-optics legislation that is

sure to appease voters, but not those who are wrongfullyconvicted.

How many guilty people should go free in order to protect an

innocent person? 10? 100? 1,000? What if you are the one innocentperson? That number should not change. If it can happen to any,it can happen to all.

Addison K. Watson*

16 HAw. REV. STAT. ANN. § 661B-l(a) (2017).1 See, e.g., UTAH CODE ANN. § 78B-9-402 (14)(a).

* Staff Editor, Mississippi Law Journal; Juris Doctor Candidate, May 2019,

University of Mississippi School of Law. Bachelor of Science in Criminology, December


2015, Missouri State University. The author would like to thank Professor C. JacksonWilliams for his help in developing this topic and his dedication to providing equalaccess for justice in Mississippi. Additionally, the author would like to thank ProfessorMatthew R. Hall for his commitment to supporting student scholarship and demandinga standard of excellence.

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WRONGFUL CONVICTIONS: LIFE, LIBERTY, AND …...2018] WRONGFUL CONVICTIONS 889 compensating those who are wrongfully convicted and subsequently incarcerated. Most of these state statutes

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